Appeals Court Upholds “Critical Mass” Racial Preferences

On Tuesday, the Fifth Circuit Court of Appeals once again voted to uphold race-based affirmative action policies at the University of Texas in Fisher v. University of Texas. The Fifth Circuit’s previous ruling in this case was in question after a US Supreme Court decision in June 2013 that determined the lower court had not properly applied the “strict scrutiny” requirement to the racial policy at Texas’ flagship university.


This outcome is not surprising in the least. The Fifth Circuit ruled decidedly in favor of race-based policies before; it is not shocking to see them do so again. This decision demonstrates the fundamental murkiness of the Grutter v. Bollinger allowance for “nuanced” uses of race in admissions.


In the Grutter dissent, Justice Ginsberg rightly pointed out that the Court was allowing racial preferences to continue with “winks, nods, and disguises.” This has led universities to hide race-based decisions behind a supposedly holistic review process. In reality they are the same discriminatory policies with even less transparency. Citizens deserve to have clarity when it comes to whether or not universities are holding their skin color against them.


Today’s appeals court ruling that universities may use race preferences confirms that race quotas are still prevalent but now employed under the new terminology of achieving a “critical mass” of minority students. Conveniently, the Fifth Circuit never defined what exactly constitutes this “critical mass.” (The ruling does not affect the eight states that have banned all use of public race preference policies.)


I am happy to hear that Abigail Fisher will appeal the decision. Grutter has only muddied the water on these unsustainable policies, and, ironically, today’s Fisher decision leaves the door open for the Supreme Court to issue the broad ruling many pundits expected from its first hearing.


Jennifer Gratz